Minerals Commission documents exonerate Mahama on Exton Cubic concession

Leaked document from the Minerals Commission, has exposed claims by the Akufo-Addo government that Exton Cubic Group, a mining company with links to businessman, Ibrahim Mahama, was given permission to prospect bauxite in the Nyinahin Forest Reserve in the Ashanti Region, simply because he is the younger brother of the then President, John Mahama.

The leaked letter, clearly shows neither the then President nor his younger brother, used their influence to cut corners for the concession. It states in clear terms the vigorous and transparent nature of the process contrary to what Akufo-Addo government has sought to portray.

Interestingly, some officials of the Minerals Commission, have indicated that they have been warned against speaking on the Exton Cubic matter or else they would have set the records straight on how the company came to acquire the Nyinahinni bauxite concession.

But the document in the possession of The Herald from the Minerals Commission, dated January 13, 2014 shows that the company was rather involved in a competitive bidding process with three other companies before permission was granted to prospect for bauxite in the concession which stretches into the Tano-Offin Forest Reserve of the Atwima Mponua District.

Details gathered from the Minerals Commission's letter signed by Joseph Aboagye Director, Policy Planning Monitoring and Evaluation for Dr. Tony Aubyn, the then Chief Executive Officer of the Commission, shows that the three other companies; BSC Company(Ghana)Limited, Coronation Trust Resources Limited and Rocksure International, are all indigenous firms.

The letter titled “Request for proposals for the development of the Kibi and Nyinahin Bauxite Ore deposits into an integrated aluminum industry in Ghana,” invited the four companies to tender for the next stage of the concession process, which later saw Exton Cubic winning.

It said in parts, “The Minerals Commission has granted non-exclusive Due Diligence Permits to a number of companies, including yourselves, over the Kibi and Nyinahin bauxite ore deposits in the Eastern and Ashanti Regions of Ghana respectively, to enable them cross-validate the existing data for the development of the bauxite ore deposits into an integrated aluminum industry.

To enable the Commission recommend the grant of an appropriate exclusive license to the best technically and financially competent company, guidelines have been developed to assist Due Diligence Permit holders, to submit proposals for the development of the bauxite ore deposits for consideration. A copy of the guidelines will be forwarded to the companies in due course”.

The five-paragraph letter continued “The proposals submitted would be evaluated by the Commission and the best company would be selected for the grant of an exclusive mineral right leading to a feasibility study report for the development of the aluminum industry in Ghana.

Interested companies will be expected to present their proposals, based on the guidelines, by the end of May 2014 in a sealed envelope and addressed to :... We trust that we can trust on your co-operation to ensure that Ghana’s mineral resources are managed in a way to contribute to sustainable development”.

Recall that in September 2017, the Ashanti Regional Minister, Simon Osei-Mensah, ordered the police to seize eight trucks, one caterpillar generating set and two container offices belonging to Engineers and Planners (E&P) that had been contracted by the Exton Cubic Group for bauxite prospecting in the Tano-Offin Forest Reserve.

During the seizure, the company insisted that it had the legal authorisation from the previous government to work in the forest reserve.

However, then Minister of Lands and Natural Resources, John Peter Amewu, explained later that the company failed to meet the legal requirements and, therefore, its lease was not valid.

He argued that the failure to obtain environmental and operational permits, as well as the various statutory infractions leading to the purported grant of the three mining leases to the company, rendered the purported leases invalid and of no effect.

After some back and forth between government and the company in the lower court, the Supreme Court threw out an application challenging the decision of Kumasi High Court not to award compensation to the company over the seizure of its mining company.

In a unanimous decision, a five-member panel of the court, presided over by Mrs. Justice Sophia Adinyera, held that the application had no merit and, accordingly, dismissed it.

Other members of the panel were; Justices Anin Yeboah, Sule Gbadegbe, Samuel Marful-Sau and Professor Nii Ashie Kotey.

Before the Supreme Court’s decision, on February 22 last year, Exton Cubic, sued the Ashanti regional Minister and the District Chief Executive (DCE) for Atwima Mponua, William Darko, for ‘illegally’ seizing its mining equipment when the company went to mine bauxite in the Tano-Offin Forest Reserve.

The company, wanted the court to order the return of its mining equipment and also prayed for compensation for ‘wear and tear’.

The suit was filed shortly after the Accra High Court, upheld the application of the company and quashed the decision to revoke the mining lease granted Exton Cubic to explore bauxite.

However, the Accra High Court, held that the company did not have a valid mining lease, because the procedures it used in securing the license were inaccurate and unlawful.

He argued that the failure to obtain environmental and operational permits, as well as the various statutory infractions leading to the purported grant of the three mining leases to the company, rendered the purported leases invalid and of no effect.

In June, 2018, the Human Rights Division of the Kumasi High Court, presided over by Justice George Krofa Addae, dismissed Exton Cubic’s claims for compensation on the basis that it had no mineral rights, because its mining lease had not been ratified by Parliament as required by Article 268 clause 1 of the 1992 Constitution.

Article 268 clause 1 of the 1992 Constitution states that “any transaction, contract or undertaking involving the grant of a right or concession by or on behalf of any person including the Government of Ghana, to any person or body of persons howsoever described, for the exploitation of any mineral, water or other natural resource of Ghana made or entered into after the coming into force of this constitution shall be subject to ratification by Parliament.’’

Certiorari application

Dissatisfied with the Kumasi High Court’s ruling, lawyers for Exton Cubic, filed a certiorari application at the Supreme Court challenging the jurisdiction of the High Court.

Making his case, lead counsel for the company, Osafo Buabeng, argued that the Kumasi High Court interpreted Article 268 clause 1, which was the sole responsibility of the Supreme Court.

He submitted that rival meanings were put on Article 268 clause 1 by the parties, and, therefore, the High Court, should have stayed proceedings and refer it to the Supreme Court for interpretation as required by law.

The state was an interested party in the case and was represented by a deputy Attorney-General, Godfred Yeboah Dame.

No need for new interpretation

In its ruling, however, the Supreme Court stated that it had already interpreted Article 268 clause 1 in a previous case, and, therefore, there was no need for the Kumasi High Court to refer it again for another interpretation.

According to the apex court, if Exton Cubic, was dissatisfied with the Kumasi High Court’s decision, it should appeal to the Court of Appeal and not file a certiorari application seeking for interpretation.

“The said article has already been interpreted. The High Court only applied it in its ruling. We find no merit in the application, and it’s accordingly dismissed,’’ the court ruled.

Background

Exton Cubic was granted a long lease concession by the Mahama government on December 29, 2016, a few days before it handed over power to the NPP government.

In September 2017, Mr Osei-Mensah, ordered the police to seize eight trucks, one caterpillar generating set and two container offices belonging to E&P that had been contracted by the Exton Cubic Group for bauxite prospecting.

During the seizure, the company insisted that it had the legal authorisation from the government to work in the forest reserve.

However, the then Minister of Lands and Natural Resources, explained later that the company failed to meet the legal requirements and, therefore, its lease was not valid.

He argued that the failure to obtain environmental and operational permits, as well as the various statutory infractions leading to the purported grant of the three mining leases to the company, rendered the purported leases invalid and of no effect.